Umana was convicted of murder, racketeering and other crimes and sentenced to death. The panel, 2-1, affirmed his convictions and sentence. The majority held that venue was proper in the eastern district of North Carolina even thought the murders took place in the middle district because 18 USC 1962 requires an objective act connecting the accused with an ongoing criminal enterprise. Here, Umana was sent to Charlotte to straighten out the M-13 gangs there and returned after the murders to boast about them. Thus, venue was proper. The majority rejected Umana’s commerce clause challenge to his 18 USC 1959 convictions holding Congress could reasonably believe that prohibiting intrastate violence connected to criminal reputation in a criminal enterprise could held thwart the spread of the enterprise and1959 has an explicit commerce clause jurisdictional requirement. The majority rejected a challenge to a seated juror whose brother had been a victim of violent crime 30 years ago as the juror answered she could be fair in this proceeding and there was no basis to conclude the events of 30 years ago impliedly caused her to be biased towards Umana. The majority rejected a challenge to a different juror holding that despite her initial ambivalence about considering a life sentence, she ultimately assure the district court that she would give consideration to both life and death sentences. The majority affirmed the admission of an interview transcript between Umana and Los Angeles detectives as he waived his Miranda rights and totality of the transcript demonstrated his will was not overborne. The majority affirmed the admission of hearsay statements by M-13 members at eh eligibility hearing noting the confrontation clause does not apply in sentencing phases and, given the forensic and eyewitness testimony independently connecting Umana to the Los Angeles murders described in the statements, the district court acted within its discretion to admit the statements. The majority also held that there was no vouching of the M-13 witnesses’ veracity and Umana was able to bring in evidence of other M-13 violence during trial and thus was not harmed by the denial of an opportunity to do so at sentencing. The majority rejected Umana’s challenge to statements by the prosecutor during argument as either isolated, fair comments on the evidence or harmless given Umana’s behavior at trial including throwing gang signs, threatening witnesses an trying to smuggle a weapon into the courtroom. The majority held that future dangerousness is a proper aggravating factor and the form used in his case did not create a presumption of dangerousness. The majority held that premedication or deliberation is not required under the 8th Amendment as a variety of aggravating circumstances are used by the states and approved by the Supreme Court. Finally, the majority held that the district court did not error in placing the burden of proof on Umana to prove mental retardation as Umana so argued below and that is the law. The dissent argued that the confrontation clause should apply at sentencing hearings in death cases as the need for reliable determinations is great and allowing accusations of wrongdoing without the opportunity for cross examination allows dubious devastating charges to come in.
McVey challenged the distribution enhancement to0 his child pornography sentence. The panel affirmed. It first held that whether the enhancement applied was subject to clear error review as the basis for applying the enhancement were factual determinations. Applying clear error review, the panel held that there was no error here as McVey admitted distributing child pornography for 10 years and his seven acts of distribution were closely connected to his possession of the images distributed.